Bush’s Secret NSA Spying May Have Tainted Prosecutions, Report Warns

The Justice Department needs to investigate whether the secretiveness of Bush’s warrantless wiretapping program tainted terrorism prosecutions by hiding exculpatory evidence from defendants, an oversight report from five inspectors general warned Friday.

The report (.pdf), mandated by Congress, also warned that President’ Bush’s post-9/11 extrajudicial intelligence programs involved unprecedented collection of communications, and that the government needs to be careful about storing and using that data.

Senator Russ Feingold, Wisconsin Democrat who sits on the Intelligence committee, said the report showed the programs were “outrageous” and called for more declassification.

“This report leaves no doubt that the warrantless wiretapping program was blatantly illegal and an unconstitutional assertion of executive power,” Feingold said. “I once again call on the Obama administration and its Justice Department to withdraw the flawed legal memoranda that justified the program and that remain in effect today.”

The government has only admitted to eavesdropping on calls and e-mails where one end was overseas and one person was suspected to be a terrorist. It has never officially confirmed that it sucked in the telephone records of millions of Americans or eavesdropped wholesale on the internet, despite repeated media reports and confirmations from Congress members. But the report makes clear that there were more intelligence programs that the so-called “Terrorist Surveillance Program” that the administration acknowledged after the New York Times revealed in December 2005.

Senator Patrick Leahy (D-Vermont) said the report shed some light on the hidden legal machinations of the Bush administration’s secret spying programs, but that a nonpartisan commission was needed to really find out what happened.

“Without a thorough, independent review of decisions that run counter to our laws and treaties, we cannot ensure that these same mistakes are not repeated,” Leahy said.

The report comes exactly a year after Bush signed the FISA Amendments Act into law after a protracted battle in Congress over whether the telecoms that aided in the secret spying should get immunity from civil lawsuits. The Democrats, including then Senator and de-facto Democratic presidential nominee Barack Obama, eventually capitulated, granting immunity and giving the nation’s spooks broad powers to sift through communications in U.S. telecom hubs without court approval.

The law directed the inspectors general from the NSA, DoD, CIA, DoJ and Office of the Director of National intelligence to create reports explaining what the Bush spying programs entailed, and to create a single, unclassified summary.

The promised report reveals little new information about the program and the drama surrounding it.

After the 9/11 attacks, President Bush authorized several ultra-secret spying initiatives designed to thwart another terrorism attack. Few were allowed to know of the program’s existence, and John Yoo, a Justice Department lawyer with close ties to the White House, was given the task of creating the legal rationale for the “President’s Surveillance Program.” Yoo’s logic hinged on a belief, espoused most strongly by Vice President Dick Cheney, that the President’s wartime powers were nearly boundless.

Yoo was one of three in the Justice Department who knew about the spying programs. Not even Yoo’s boss knew what he was doing or that the programs existed.

Every 45 days the CIA or other intelligence group would write up terrorism threat summaries, later known as the “scary memos.” Those created the justification for the President’s recurring authorizations, which contradicted the plain language of the nation’s wiretapping law. That 1978 law, known as the Foreign Intelligence Surveillance Act, required court approval for spying wiretaps placed inside the United States and it is a felony to violate that law.

According to the consolidated unclassified report, the head of the NSA in 2001, General Michael Hayden, took the White House’s legal assurances at their word and pulled together a small group of NSA employees. He told them, “We are going to do exactly what he said and not one photon or electron more.”

But Yoo’s legal memos did not withstand scrutiny from other Justice department lawyers in 2003, who found that his rationales were deeply flawed. They also discovered that his descriptions of the programs were inadequate, meaning that some of the government’s activities had no legal justification whatsoever.

That led to a much publicized showdown that included a race to then Attorney General John Ashcroft’s hospital bed and a handwritten note, never delivered, from FBI director Robert Mueller. That note said in part, “Should the President order the continuation of the FBI’s participation in the program, and in the absence of further legal advice from the AG, I would be constrained to resign as the Director of the FBI.”

The surveillance programs were saved at the last moment, using a different legal rationale. Eventually the programs were submitted to the nation’s secret spying court, but they were quickly struck down as illegal, forcing the Bush Administration to finally go to Congress to expand its wiretapping authorities.

The Justice Department IG found that the program played only a “limited role in the FBI’s overall counterterrorism efforts,” but warned that the information collected by the program could have tainted criminal prosecutions. It recommended that the Justice Department look hard to see if there was information collected by that program that should have been or should be turned over to defendants in terrorism cases. By law, prosecutors have to give a defendant all relevant information about their case, including any evidence that helps a defendant prove they are innocent.

The report ends with a stern, albeit vague, warning about the scale and lingering effects of the program now that it has been legalized by Congress.

“The collection activities pursued under the PSP and under FISA following the PSP’s transition to that authority, involved unprecedented collection activities. We believe the retention and use by Intelligence Community organizations of information collected under the PSP and FISA should be carefully monitored,” the report’s final lines read.

Update: This story was update at 4:30 PM Pacific to include a quote from Senator Feingold.